The Alan Leiken/Debra Dwyer duo of economists provide formidable testimony for plaintiffs on economic damages. Dr. Leiken has testified over 400 times and admits to $500,000 per year in income, consulting and testifying for plaintiffs on personal injury cases. Twice last month we encountered these witnesses on damages trials with the same plaintiffs’ law firm. On both cases, we walked away with defense verdicts. How does the defense attorney approach the cross examination of an expert economist? If we had any proficiency at math, perhaps it would be a fair fight, but we are trial lawyers, not mathematicians. My history degree from Fordham is no match for a P.h.D. economist, well skilled at cross examination.
As with the cross examination of the life care expert, defense counsel must emphasize the economist is not basing his opinion as to future medical care on the reality of the treatment protocols the plaintiff is receiving. Take for example this exchange I had with Dr. Leiken:
Q And I presume you interviewed the plaintiff extensively and found out what healthcare she’s currently receiving?
A My analysis, I believe I said, is purely based on Dr. Richter’s report. It has nothing to do with what she may or may not have received. It obviously has nothing to do with my opinion, as a Ph.D. economist. It’s purely based on the life care plan developed by Dr. Richter.
Q Doctor, I know that you have been cross-examined before. Do you or can you follow an instruction that if I ask you a yes or no question, I’d ask you to answer with a yes or no. If you can’t, let me know and I’ll either rephrase the question or I’ll move on.
Q So that was a good example. Did you interview the plaintiff to find out what type of healthcare she is receiving currently?
A Did I do that? No.
Q Do you know, and this is also a yes or no question, do you know that she has not been to any doctor for any treatment for at least the last 18 months, a year and a half?
A Do I know that? No.
Q Do you know or did you speak to any of her physicians in this case, Dr. Berkowitz, Dr. Das, Dr. Rafiy, Dr. Shiau, and ask them what her future healthcare needs are? Did you speak to any of those physicians that I just mentioned?
Q Did you at any time ask any of those physicians what the costs are for their services?
A I never spoke to them, so I never asked them.
Once you can establish the numbers touted by the plaintiff’s expert are purely for the courtroom, with no basis in the true medical care/costs the plaintiff is facing, the next step is to attack the expert on the foundation of the testimony. The economist uses, as the basis for his/her opinion, the published data from the U.S. Bureau of Labor statistics which are available to all. https://data.bls.gov/cgi-bin/dsrv (see attached spreadsheets). Dr. Leiken/Dwyer use statistics over a 25 year time period from 1991, described as a ‘business cycle’, which gives a higher annual percentage increase in medical care, prescription drugs, physical therapy, etc. The actual 10 year increase from 2007 will yield a much lower percentage. For example, the cost of medical care increasing at an annual growth rate of 4% will yield a much higher number over the life expectancy of the plaintiff than a 2.4% increase. After showing the jury the numbers touted by the plaintiff’s expert are inflated, you can ask the expert whether a .5% decrease in a mortgage over 30 years will yield to a much lower cost for the homeowner. That example, born true by millions of people who have refinanced for a ½ percentage decrease, can be used to bring the expert’s opinion to life and show the jury the numbers provided are inaccurate.